The government typically charges a Soldier with entering into an inappropriate relationship when there was, in fact, no relationship. The problem stems from a fundamental misunderstanding by the government as to what it required in order to actually enter into an inappropriate relationship under the regulation.
The Army Court of Criminal Appeals has repeatedly held that a “victim’s conduct is relevant to whether or not a prohibited relationship was established.” United States v. Oramas, 2007 WL 7271934 (A.C.C.A.) citing United States v. Morgan, ARMY 20000928, 2004 CCA LEXIS 423, at *7; see United States v. Humpherys, 57 M.J. 83, 93–95 (C.A.A.F. 2002); United States v. Moorer, 15 M.J. 520, 522 (A.C.M.R. 1983) rev’d in part on other grounds, 16 M.J. 451 (C.M.A. 1983)(sum. disp.). This makes eminent sense. AR 600-20 criminalizes a prohibited relationship that runs afoul of its provisions, and holds both parties accountable for the relationship. See AR 600-20, 4-14, para. e (“All military personnel share the responsibility for maintaining professional relationships. … [A]ll members may be held accountable for relationships that violate this policy.”). An accused cannot be in a prohibited “relationship” where there is no actual relationship.
Military courts have clearly stated on multiple occasions that solicitation and the pursuit of a relationship do not violate AR 600-20. “[S]olicitation to engage in sexual acts does not amount to a relationship as envisioned by AR 600–20 when the verbal advance was rejected.” United States v. Delgado, 2016 WL 109792, at *2 (A.C.C.A. 6 Jan. 2016) citing United States v. Oramas, ARMY 20051168, 2007 CCA LEXIS 588, at *6–8 (A.C.C.A. 29 Mar. 2007) (mem. op.). Additionally, “rejected physical advance(s) including touching and kissing also … [do] not rise to the level of a relationship as defined by AR 600–20.” Id., citing United States v. Morgan, 2004 CCA LEXIS 423, at *6–8 (A.C.C.A. 20 Feb. 2004) (mem. op.) (emphasis added). If a complaining witness has rejected or rebuffed an accused’s actions, then by definition, they are not in a “relationship” with the accused. “[C]lumsy and ineffective courting techniques and flirtatious behavior, alone, do not constitute a “relationship” as that term is ordinarily defined.” United States v. Oramas, 2007 WL 7271934 (A.C.C.A.).
In Oramas, the accused pled guilty to three specifications:
The three specifications referenced in appellant’s assignment of error allege appellant engaged in wrongful conduct, on 13–14 June 2005, by making “sexual and inappropriate personal advances” toward three different IET trainees. During the plea inquiry, appellant told the military judge he “made inappropriate remarks towards [Private (PVT) TT,] … asked her if she liked Puerto Ricans … [, and] told her she was cute.” (Specification 2 of Charge III.) During a subsequent incident, appellant said he “flirted with [PVT TR,] … told her she was attractive … [, and] asked if she liked Puerto Rican men.” (Specification 3 of Charge III.) In describing the last incident charged, appellant informed the military judge that he “told [PVT FC] that she was attractive[,] … asked her if she liked Puerto Ricans,” and made some other comment he could not recall. Each instance appellant described and set forth in the stipulation of fact demonstrated appellant’s intent to engage in a prohibited relationship with an IET soldier who went to the Brigade Aid Station seeking medical treatment.
Id. at *1. The Army Court of Criminal Appeals noted, however, that “the stipulation of fact agreed to by all parties and admitted at trial, as well as appellant’s statements during the plea inquiry indicate these IET soldiers did not accept appellant’s advances.” Id. As such, the court concluded that the “military judge failed to elicit a sufficient factual basis from appellant to demonstrate that appellant’s conduct … resulted in a consummated, prohibited “relationship.” While “appellant engaged in conduct that included unsolicited comments directed toward Privates TT, TR, and FC … no “relationship” was established with the three IET soldiers because they did not accept appellant’s advances.” Id.
A similar situation arose in United States v. Morgan, 2004 WL 5866707 (Army Ct.Crim.App.). In that case, the accused was also charged with multiple counts of violating AR 600-20. The Army Court of Criminal Appeals concluded that it was not convinced beyond a reasonable doubt that the accused’s conduct resulted in a consummated, prohibited relationship. Id. The Court disagreed with appellate government counsel’s contention that “[t]he fact that appellant’s victims did not return his affections or accept his invitations is irrelevant” to our determination of factual sufficiency.” Id. The Court held that “[t]he victim’s conduct is relevant to whether or not a prohibited relationship was established. … Here, Privates F.M., M.M, and S.D. all testified that appellant engaged in conduct that included unsolicited comments, notes, and/or physical touching directed toward them. However, no “relationship” was established with the three IET soldiers because they did not accept appellant’s advances.” Id. See also United States v. Delgado, 2016 WL 109792, at *2 (Army Ct. Crim. App. 6 Jan. 2016) (“In this case, appellant’s non-consensual sexual assault on PFC YCG cannot form the basis to establish a consensual inappropriate relationship.”).
The case law is abundantly clear that “it takes two to tango.” In other words, in order to have a relationship under AR 600-20, there must be two people who are voluntarily participating in the relationship. If you are charged with an inappropriate relationship under AR 600-20, ensure that your defense counsel is aware of the requirement to actually demonstrate that there was a relationship.